Court Rejects Government's Executive Power Claims and Rules That Warrantless Wiretapping Violated Law

Today, Chief Judge Vaughn Walker of the federal district court in San Francisco found that the government illegally wiretapped an Islamic charity's phone calls in 2004, granting summary judgment for the plaintiffs in Al-Haramain Islamic Foundation v. Obama. The court held the government liable for violating the Foreign Intelligence Surveillance Act (FISA).

Today's order is the first decision since ACLU v. NSA to hold that warrantless wiretapping by the National Security Agency was illegal. The decision in ACLU v. NSA was overturned on other grounds in 2007, and the focus of the government's litigation strategy since then has been to avoid having any court rule on the merits of the issue.

The court's thorough decision is a strong rebuke to the government's argument that only the Executive Branch may determine if a case against the government can proceed in the courts, by invoking state secrets. The Obama Administration adopted this "state secrets privilege" theory from the Bush Administration's legal positions in this and other warrantless wiretapping cases.

The government's overreaching claim of unbridled executive power finally backfired today in the Al-Haramain case. As the court wrote in its order, "Under defendants' theory, executive branch officials may treat FISA as optional and freely employ the SSP [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority."

The court, although noting the government's "impressive display of argumentative acrobatics," flatly rejected this theory. "Defendants could readily have availed themselves of the court's processes to present a single, case-dispositive item of evidence at one of a number of stages of this multi-year ligitation: a FISA warrant. They never did so." Therefore, "for purposes of this litigation, there was no such warrant for the electronic surveillance of any of plaintiffs," and the surveillance therefore violated FISA.

In his opinion, Judge Walker found that the plaintiffs had succeeded in making out a case based solely on non-classified public evidence that the government had eavesdropped on their phone calls. Because the government refused to confirm or deny that it had ever gotten a court order authorizing that wiretapping, Walker concluded that the government had failed to dispute the plaintiffs' claims. Walker then held that the government violated FISA when it spied on the charity without first obtaining an order from the secretive Foreign Intelligence Surveillance Court to authorize the spying.

The plaintiffs also brought several other claims against the government based on the illegal wiretapping, including claims for violation of the First and Fourth Amendments to the Constitution. However, today's order only granted summary judgment on the FISA claims. The next step is up to the plaintiffs, according to Judge Walker. Al Haramain can either voluntarily dismiss their non-FISA claims and obtain a final judgment, including damages, on their FISA claim, or they can continue to press their additional claims, in which case the court and the parties will have a case management conference to determine how to proceed. Regardless of which path the plaintiffs choose, the government is ultimately likely to appeal Judge Walker's decision to the Ninth Circuit Court of Appeals, which will also be considering appeals in EFF's NSA wiretapping lawsuits Hepting v. AT&T and Jewel v. NSA.

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